This is the GOP's play to deny birth control coverage to women, and not just if the employer is a religious institution. If the CEO at Big Corporation, Inc. decides s/he is morally opposed to birth control (or blood transfusions or vaccinations), that's it. No more coverage and a big flip of the bird to the Affordable Care Act.
All this under the guise of upholding religious freedom.
The GOP claims that the Obama administration has "trampled" on the Free Exercise Clause of the Constitution by requiring all employers, including religiously affiliated institutions, to provide birth control to their employees under the new healthcare law. Churches are exempt from this provision, but anti-choice loons are saying that any organization that provides a secular service, i.e. university, hospital, etc., with ties to a church ought to be exempt. By the way, please note that I'm using "anti-choice" to talk about run-of-the-mill birth control -- as in, the pill. And as mentioned above, Senator Roy Blunt's amendment (R-MO) would extend that exemption to allow any employer to deny birth control coverage to its employees if doing so would be contrary to its "religious beliefs or moral convictions."
Let's be clear: this is not really about religious freedom for the GOP. This is about shoving women back into the 1950s and trying to hide behind the Constitution while doing it. This is about the GOP making a sharp right turn in an election year and attempting to take the rest of the country with them. This is about giving corporations more say over women's health choices instead of leaving it to, say, women.
But let's pretend for a minute that passing the Blunt Amendment is really about rectifying an alleged free exercise violation built into the Affordable Care Act. And let's also pretend that the Affordable Care Act was passed by Congress, signed by the President, and is therefore the law of the land until the Supreme Court takes it under consideration... oh wait, that second part is reality. Right.
So the question here is: Does a certain population deserve an exemption from complying with the Affordable Care Act due to their religious views on birth control?
Playing the free exercise card is, in theory, a good tactic. The American people are all about free exercise (unless you're a Muslim). Establishment clause... I think some people are a little vague on that one (stop trying to put the Ten Commandments in every public space -- sheesh), but free exercise can be summarized with small enough words for people to understand: the government shouldn't interfere with religion.
But in practice, free exercise is not a "Get out of jail free" card for disobeying a generally applicable law. For example, I'd have been in serious trouble had I refused to pay taxes based on my moral opposition to the war in Iraq: tax evasion is a crime. In 1983, Bob Jones University lost its tax-exempt status because of the university's policy prohibiting interracial dating, a policy allegedly grounded in the university's religious values: can't take money from the feds and have institutionalized racism. And in 1989, the Supremes (I'm nothing if not reverent on this blog) decided that use of an illegal drug during a religious ceremony still counts as illegal use: illegal drugs are illegal (like that logic?).
The Supreme Court does not have a strong track record of upholding individual religious beliefs over obeying valid laws. Exemptions to complying with an otherwise constitutional and generally applicable law are rare, which is what Senator Blunt and his fellow GOP goofballs are asking for.
One Supreme Court Justice in particular has done some fascinating work on this issue. To illustrate my point and simultaneously stick it to the conservatives, I turn to that bastion of conservative goofiness on the U.S. Supreme Court, Justice Antonin Scalia.
Justice Scalia has a brilliant legal mind. Like Vincent Van Gogh, this brilliance is accompanied by a fair portion of loony, his of the conservative jurisprudence variety, as opposed to the ear-chopping type. But loony or not, Justice Scalia is smarter than anyone reading this blog.
|Justice Scalia and his doppelganger, Mr. Bates, the brooding valet of Downton Abbey.|
One of the cases I references above was a 1989 decision, a result of Employment Division v. Smith. Back in the 1980s, a couple of guys in Oregon were fired from their jobs and denied unemployment benefits after participating in a Native American religious ceremony which involved smoking peyote. Peyote is classified as a Schedule 1 controlled substance by the DEA, and at the time of the employees' firing, this drug was illegal in Oregon. "Free exercise!" they yelled. "That law infringes upon my right to practice my religion!"
"Nope," said the Supreme Court.
Justice Scalia wrote the opinion in this case. As I've said, the man has some goofy ideas about constitutional interpretation, but in this instance, he articulated the real interest the United States has in narrowly defining the scope of free exercise.
One of the first points the Court addresses in this decision is the idea of a generally applicable law and its relation to the Free Exercise Clause. A law that specifically targets a practice "because of [its] religious motivation" would be unconstitutional. However, an individual is not exempt from complying with a law that is "not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons."
Later in the opinion, Justice Scalia writes:
To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" -- permitting him, by virtue of his beliefs, "to become a law unto himself," Reynolds v. United States, 98 U.S. at 98 U. S. 167 -- contradicts both constitutional tradition and common sense.He continues:
What it produces in those other fields [where an exemption would be granted] -- equality of treatment, and an unrestricted flow of contending speech -- are constitutional norms; what it would produce here -- a private right to ignore generally applicable laws -- is a constitutional anomaly.
And finally, Justice Scalia sums it up nicely:
We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.
Whaddya say about liberal activist judges now, GOP?!
It's not a perfect comparison to what's happening with the Affordable Care Act, so please don't jump on me over the nitty gritty. The point I am trying to make, though, is that the Supreme Court has held that a religious or moral opposition to a law does not automatically constitute a violation of the Free Exercise Clause. I am morally opposed to a lot of things, but that does not mean that the law has to accommodate my every whim just because I claim a conscientious base for my opposition.
And in the case of complying with the Affordable Care Act's mandate that employers provide insurance coverage for birth control, I have seen nothing to suggest that a particular group's religious beliefs were targeted. In 2012, birth control is part of basic women's healthcare. I don't care who you are, you know at least ten women who are on the pill. You probably also know (*gasp*) a woman who has had an abortion.
And if we as a country have decided that universal healthcare is essential part of our public policy, you better believe that women are included in "universal." Please see the Fourteenth Amendment.
In conclusion, GOP members of Congress need to read the Constitution of which they claim to be the sole protectors. I think they'll see that the founders built in a separation of powers; in addition, there's another constitutional tidbit called judicial review. So leave the constitutional interpretation to the guys in the black robes. Believe me, they're smarter than all of you.